Jackson, Fred v. The State of Texas

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AFFIRM; Opinion issued January 25, 2012
 
In The
Court of Appeals
Fifth District of Texas at Dallas
............................
No. 05-10-00816-CR
............................
 
FRED JACKSON, Appellant
 
V.
 
THE STATE OF TEXAS, Appellee
 
.............................................................
On Appeal from the County Criminal Court No. 9
Dallas County, Texas
Trial Court Cause No. MB08-66442-K
.............................................................
 
MEMORANDUM OPINION
Before Justices Lang, Murphy, and Myers
Opinion by Justice Murphy
Fred Jackson appeals his driving while intoxicated (DWI)
conviction for which he was fined $500 and sentenced to ninety days in
jail, probated for one year. See Tex. Penal Code Ann. § 49.04(a),(b)
(West 2011); see also id. § 12.22 (West 2011). Appellant claims in a
single issue that the trial court should have granted his motion to
suppress because the police lacked probable cause to arrest him for DWI.
We affirm.
STANDARD OF REVIEW AND APPLICABLE LAW
 
We review a trial court's ruling on a motion to suppress under a
bifurcated standard of review. St. George v. State, 237 S.W.3d 720, 725
(Tex. Crim. App. 2007); Ford v. State, 158 S.W.3d 488, 493 (Tex. Crim.
App. 2005). We do not engage in our own factual review; rather, the
trial judge is the sole trier of fact and judge of credibility of the
witnesses and the weight to be given to their testimony. St. George, 237
S.W.3d at 725. We give almost total deference to a trial court's
 
determination of historical facts, particularly when the trial court's
findings are based on an evaluation of credibility and demeanor. Id.;
Guzman v. State, 955 S.W.2d 85, 89 (Tex. Crim. App. 1997). We also
afford the same deference to mixed questions of law and fact if
resolving those questions turns on an evaluation of credibility and
demeanor. Guzman, 955 S.W.2d at 89. Where, as here, the trial court
makes no fact-findings, we assume the trial court made implicit
fact-findings if the evidence, viewed in the light most favorable to the
trial court's ruling, supports the implied findings. See State v. Kelly,
 204 S.W.3d 808, 818-19 (Tex. Crim. App. 2006); Guzman, 955 S.W.2d at 89.
We apply a de novo standard of review to all other mixed questions of
law and fact, including probable cause for appellant's arrest. See
Valtierra v. State, 310 S.W.3d 442, 447-48 (Tex. Crim. App. 2010).
Probable cause to arrest exists when the police have reasonably
trustworthy information that would warrant a reasonably cautious person
to believe that an offense has been or is being committed. See Carroll
v. United States, 267 U.S. 132, 162 (1925). The legal determination of
probable cause is based on the totality of the circumstances and
practical common sense. See Illinois v. Gates, 462 U.S. 213, 231-39
(1983). There is no all-encompassing definition of probable cause
because it is a fluid concept “turning on the assessment of
probabilities in particular factual contexts.” Id. at 232. Only a
“probability” of criminal activity is the standard for probable cause
 
and “[f]inely tuned” standards such as proof beyond a reasonable doubt
or by a preponderance of the evidence have no place in making a probable
cause determination. Id. at 235; Guzman, 955 S.W.2d at 87.
ANALYSIS
 
The suppression-hearing record reflects that Dallas Police
Officer John Tutt was the only witness to testify. Tutt testified that:
(1) Tutt and his partner responded to the scene of an accident involving
several cars; (2) appellant approached Tutt at the scene and informed
Tutt that he had been the driver of one of the cars; (3) the driver of
one of the other cars involved in the accident told Tutt that the
accident was appellant's fault; (4) appellant had bloodshot eyes and his
breath smelled of alcohol; (5) appellant was “overly friendly” and kept
touching Tutt, who told appellant more than once not to touch him; (6)
appellant exhibited a sufficient number of “clues” indicative of
intoxication in each of three field sobriety tests that Tutt
administered to appellant (the horizontal gaze nystagmus [HGN] test, the
walk-and-turn test, and the one-leg-stand test); and (7) Tutt arrested
appellant for DWI following these field sobriety tests. This evidence,
viewed in the light most favorable to the trial court's denial of
appellant's motion to suppress, is sufficient to support findings that
Tutt reasonably believed there was a “probability” that appellant had
been driving while intoxicated. See Gates, 462 U.S. at 235 (only a
“probability” of criminal activity is the standard for probable cause).
In support of his argument that Tutt lacked probable cause to
 
arrest him for DWI, appellant relies on Tutt's testimony that the smell
of alcohol on appellant's breath did not necessarily indicate
intoxication and that appellant's bloodshot eyes could have been caused
by chemicals released from the vehicle's air bag deployment during the
accident. This testimony does not require a decision contrary to our
conclusion stated above. The possibility of an innocent explanation for
appellant's bloodshot eyes and the smell of alcohol on his breath did
not deprive Tutt of the capacity to entertain a reasonable suspicion of
criminal conduct justifying further investigation. See State v.
Castleberry, 332 S.W.3d 460, 468 (Tex. Crim. App. 2011).
Appellant also argues that Tutt administered the HGN test
improperly, he miscounted the points on the walk-and-turn test, and he
misapplied the one-leg-stand test. The State responds that Tutt had
probable cause to make the DWI arrest of appellant without considering
the field sobriety tests. Additionally, the State argues there was no
affirmative evidence presented at the suppression hearing to show any
deficiency in the manner in which Tutt administered the tests or his
interpretation of the results.
In our review of the trial court's ruling on the motion to
suppress, we consider only the record of the suppression hearing because
that is the only evidence before the trial court at the time of its
ruling on appellant's motion to suppress; the suppression issue of
probable cause for appellant's arrest was not relitigated at appellant's
 
trial. See Gutierrez v. State, 221 S.W.3d 680, 687 (Tex. Crim. App.
2007) (in reviewing trial court's pretrial ruling on suppression motion,
reviewing court generally limited to record produced at hearing unless
parties relitigate suppression issue at trial); see also Rangel v.
State, 250 S.W.3d 96, 97-98 (Tex. Crim. App. 2008) (per curiam)
(declining to examine propriety of trial judge's ruling based on
evidence admitted after ruling and that trial judge had no opportunity
to consider). Here, appellant did not attempt to relitigate the legality
of his arrest either with a requested jury charge question or by a
request that the trial court reconsider its prior ruling. We overrule
appellant's sole issue and affirm the trial court's judgment.
 
MARY MURPHY
JUSTICE
Do Not Publish
Tex. R. App. P. 47
100816F.U05
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